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Francisco, and that the United States, in the absence of any provision to the contrary, could not be held liable for the demurrage paid by the shipper to the owners of vessels carrying the coal for delay in discharg
ing their cargoes on account of the crowded condition of the harbor. In engagements to furnish goods to a certain amount the quantity specified
governs. Words like "about” and “more or less'' are only for the pur
pose of providing against accidental and not material variations. Under the contract in this case for delivery of "about” 5,000 tons of coal
the United States cannot refuse to accept more than 4,634 tons, but is liable for the difference in value on 366 tons tendered and acceptance refused.
The facts are stated in the opinion.
Mr. L. T. Michener, with whom Mr. W. W. Dudley was on the brief, for appellant:
As the agreement was prepared by the Government it will be construed most strongly against it. Garrison v. United States, 7 Wall. 688, 690; Chambers v. United States, 24 C. CI. 387, 392; Simpson & Co. v. United States, 31 C. CI. 217, 243; Edgar & Thompson Works v. United States, 34 C. CI. 205, 219.
The Government was bound by the customs of the Port of San Francisco. 2 Parsons on Contract, side pp. 535, 539; Robinson v. United States, 13 Wall. 363, 366; Hostetter v. Park, 137 U. S. 30, 40; Honge v. Woodruff, 19 Fed. Rep. 136; Smith v. 60,000 feet of Lumber, 2 Fed. Rep. 396; Moody v. 500,000 Laths, 2 Fed. Rep. 607; Pleasant v. Pendleton, 6 Rand. (Va.) 493; Barlow v. Lambert, 28 Alabama, 704; Foley v. Mason, 6 Maryland, 37; Van Hoesen v. Cameron, 54 Michigan, 609; McClusky v. Klosteman, 20 Oregon, 108; Lyon v. Culbertson, 83 Illinois, 33; Maclachan on Mer. Ship. 360; Abbot on Ship. 228; Parsons on Ship. 324; Barnard v. Kellogg, 10 Wall. 390, distinguished. It is immaterial whether or not the officers and agents of the United States had knowledge of the custom. Phillips on Ins. $ $ 950, 1003; Thatcher v. McCulloch, Olcott, 365; Loury v. Russell, 8 Pick. 360; McMasters v. Pa. R. R. Co., 60 Pil. St. 372; Pittsburg Ins. Co. v. Draro, 2 Phil. W. N. C. 194; cases and authorities cited supra.
The facts proved as to the conditions at Honolulu do not
relieve defendant. Williams v. Theobald, 15 Fcd. Rep. 468; citing Randall v. Lynch, 2 Camp. (N. P.) 352.
The parties having contracted in such a way as to fix the rate of discharge, it follows inevitably that local conditions at Honolulu could not relieve them from such contract stipulations.
If the shipper or freighter covenants to do a particular act, which it becomes impracticable for him to do, he must answer for his default. Cross v. Beard, 26 N. Y. 85; Abbott on Shipping, 307, 387; Ford v. Cotesworth, L. R. 4 Q. B. 127; Williams v. Theobald, 8 Sawyer, 443, 448; Allen v. 385 Tons of Coal, 27 Fed. Rep. 316; 9 Am. & Eng. Ency. of Law, 223, 242.
Even if there were no contract at all concerning lay days or demurrage, the law will imply a contract that the ship shall be detained a reasonable time only, and that the ship shall have reasonable dernurrage therefor. Maclachlan, 546; 1 Parsons Mar. Law, 152; 1 Leggett on Bills of Lading, 297.
The burden of getting wharf at Honolulu was on the Government and not on the shipper. 1 Parsons on Ship. 226; Porter on Bills of Lading, $ 400; Oliver on Shipping, 77; Scrutton on Charter-parties, 90; Stewart v. Rogerson, 6 L. R. Com. Pl. 424; Jacques v. Wilson, 7 Times L. R. 119; Tharsis Co. v. Morrell, L. R. 2 Q. B. (1891,) 647, 652; The Boston, 1 Lowell, 464; Manson v. Railroad Co., 26 Fed. Rep. 923; Nelson v. Dahl, 12 Ch. Div. 562; Choate v. Meredith, 1 Holmes, 500; Moody v. 500,000 Laths, 2 Fed. Rep. 607; Davis v. Wallace, 3 Clifford, 133; Thatcher v. Gas Light Co., 2 Lowell, 362; Smith v. Lee, 66 Fed. Rep. 344; P. & R. R. R. Co. v. Northam, 2 Ben. 1; Reed v. Weld, 6 Fed. Rep. 304.
If the wharves were all occupied the Government should have directed other delivery. Williams v. Theobald, 8 Sawyer, 443, 448; Nelson v. Dahl, 12 L. R. Ch. Div. 568; Ford v. Colesworth, L. R. 4 Q. B. 127; Cross v. Beard, 26 N. Y. 85; Allen v. 385 Tons of Coal, 27 Fed. Rep. 316.
In the absence of any express agreement as to the time for unloading, the law implies a contract to unload within a rea
Argument for the United States.
sonable time, and if the charterer or consignee fails to do so, through his own fault or that of his agent, he is liable for damages in the nature of demurrage for the detention of the vessel. 9 Am. & Eng. Ency. of Law, 253, n. 3; Melloy v. Lehigh Co., 37 Fed. Rep. 377; Sprague v. West, Abb. Admr. 548, 553; Bacon v. Transp. Co., 3 Fed. Rep. 344; Hangood v. Tons of Coal, 21 Fed. Rep. 681; Crawford v. Mellor, 1 Fed. Rep. 638; Hyperion's Cargo, 2 Lowell, 93; The T. L. Adams, 26 Fed. Rep. 655; Empire Co. v. P. & R. R. R. Co., 70 Fed. Rep. 263; S. C., affirmed 77 Fed. Rep. 919; Randall v. Sprigg, 74 Fed. Rep. 247; Hozie v. Reuben Doub, 46 Fed. Rep. 800.
The Government having accepted the cargoes as consignee is liable the same as if it had been the charterer or party to the bill of lading. 1 Parsons Ship. 312; Sutton v. Housatonic R.R. Co., 45 Fed. Rep. 507; N. German Lloyd v. Heule, 44 Fed. Rep. 100; Neilson v. Jesup, 30 Fed. Rep. 138; The Thames, 14 Wall. 98, 107; Gates v. Ryan, 37 Fed. Rep. 154.
The authorities established that the Government is liable as consignee for the demurrage paid by the charterer to the shipowner. Cases cited supra and The Rebecca J. Moulton, 5 Dec. of Comptroller, 305; 275 Tons of Phosphates, 9 Fed. Rep. 209; Young v. 140,000 Bricks, 78 Fed. Rep. 149; Falkenberg v. Clark, 11 R. I. 278; Abb. on Ship. 306; 1 Kay on Shipmaster & Seaman, 151; Jesson v. Solly, 4 Taunton, 52; Mitchell v. Langdon, 10 Biss. 527; Wright v. New Zealand Co., L. R. 4 Exch. Div. 165, 170; Tillett v. Com. Avon W ks., 2 Times Law Rep. 675; Carver on Carriage by Sea, 88 644, 712.
As to the true rule of interpret tion of.“more or less" "about, ‘say," and equivalents, see Brawley's Case, 11 C. C. 522; S. C., affirmed 96 U. S. 168, 173, and Norrington v. Wright, 115 U. S. 188.
Mr. Special Attorney Philip M. Ashford, with whom Mr. Assistant Attorney General Pradt was on the brief, for the United States:
The contracts are silent as to the carriage of the coal which
196 U. S.
Argument for the United States.
was to be delivered on the wharf at Honolulu. The agent of the United States had no knowledge of the customs of San Francisco. If any customs controlled they would be those of Honolulu and not of San Francisco. Carver on Carriage by Sea, $ 461. The liability of the United States was only that of consignee. 9 Am. & Eng. Ency. of Law, 2d ed., 229, 257.
Where the vessel arriving is obliged either by custom of the port or bill of lading to await its turn in discharging the consignee is not liable for demurrage caused by the harbor being overcrowded. Owen v. 49,774 Bushels of Rye, 54 Fed. Rep. 185; Riley v. Cargo of Iron Pipes, 40 Fcd. Rep. 605; Cross v. Beard, 26 N. Y. 85; Wordin v. Bemis, 32 Connecticut, 268; The Glover, 1 Brown, Adml. 166; Clendaniel v. Tuckerman, 17 Barb. 184; Towle v. Kettell, 5 Cush. 18; Weaver v. Walton, 5 Chi. Leg. N. 125; Abbs. Ship. 311; Fulton v. Blake, 5 Biss. 371; Rodgers v. Forresters, 2 Camp. 483; Burmaster v. Hodgson, 2 Camp. 488; The M. S. Bacon, 3 Fed. Rep. 344; Coombs v. Nolan, 7 Ben. 301; Velatty v. Curtis, 41 Fed. Rep. 479; The Elida, 31 Fed. Rep. 420; The Mary Riley v. 3,000 Railroad Ties, 38 Fed. Rep. 254; Empire Transp. Co. v. P. & R.C. & I. Co., 77 Fed. Rep. 919; Smith v. Granite Paving Co., 56 Fed. Rep. 525.
Where the consignee is not bound by the contract to furnish a berth (and the consignee in this case certainly was not), and where the vessel is required to take its turn in unloading (the vessels in this case certainly were), he is not liable for delay caused by an extraordinary accumulation of vessels to be unloaded. Such is the principle to be gleaned from the authorities heretofore cited. Reasonableness is all that is required of the consignce with reference to the receipt and clisposal of a cargo in all shipping contracts, and as we have before stated, where the charter party or the bill of lading is silent as to the matters in dispute here, reasonable conduct only is required. Whiteside v. Halstead, 90 Illinois, 95; Etten v. Newton, 134 N. Y. 143; Dayton v. Park, 142 N. Y. 391; 9 Am. & Eng. Ency. of
Law, 2d ed., 255; Carver's Carriage by Sea, $ 736; 7 Comp. Dec. 573; 2 Parsons, 423.
No particular wharf was designated, but it was specifically and definitely stated in the contract that the coal should be delivered at a wharf in the port of Honolulu and the facts found show that only one of three places at said port would conform to this requirement. To one of these places the ships in question must conj before "lay days” would commence to run, and the United States as consignee was not liable for delays to the ships in coming to such place or places caused by their occupation by other ships.
So it seems clear that the “lay days” provided for said vessels should not be•held to begin to run against the United States until after the arrival of the vessels in question at the wharf. Bereton v. Chapman, 5 Moo. P. 526; Bremner v. Bunell, 4 Sess. Cass. 934.
As to definition of "about," see Benj. on Sales, 8 691; 96 U.S. 168, 171, 172; 115 U. S. 189, 204; 57 N. Y. Super. Ct. 57; 54 Maryland, 187; 7 Ind. App. 462, 467; 5 Gray (Mass.), 589; 6 El. & Bl. 675, 678;2 Camp. 56; L. R. 5;P. C. 203, 217; 1 P. C. Div. 155, 158.
It is only a question of whether or not, under the circumstances surrounding this particular case, the delivery of 4,634 tons of coal was the delivery of “about 5,000 tons” of coal. It seems clear that it was.
MR. JUSTICE MCKENNA delivered the opinion of the court.
The appellant is a general commission merchant and shipper at San Francisco. He filed his petition in the Court of Claims, consisting of two paragraphs, in the first of which he claimed reimbursement from the United States of the sum of $1,053.36, demurrage paid by him for the detention over lay days of two ships chartered by him to transport coals to Honolulu and there to be delivered to the United States. By the second paragraph he prayed the recovery of the sum of $1,120.87, the